44. Attempt — Vic Criminal Law¶
Scope and currency
Cheat sheet · Crimes Act 1958 (Vic) ss 321M–321S · common law attempt abolished (s 321S)
Starting point — s 321M. A person who attempts to commit an indictable offence is itself guilty of an indictable offence. The common law offence of attempt is abolished by s 321S, so the statutory offence must always be pleaded. Section 321N imposes two elements: the accused must have intended to commit the principal offence, and must have engaged in conduct that is more than merely preparatory to, and immediately and not remotely connected with, the commission of that offence. The prosecution must also disprove beyond reasonable doubt any defence properly raised on the evidence.
Run it in this order¶
• 1. State the statutory home. The offence arises under s 321M, and the common law offence of attempt is abolished by s 321S.
• 2. Prove Element 1 — intention. The accused intended to commit the principal offence (s 321N(2)).
• 3. Prove Element 2 — the act. The conduct was more than merely preparatory and immediately and not remotely connected with the offence (s 321N(1)).
• 4. Address impossibility if raised. Facts unknown to the accused that made completion impossible are no bar (s 321N(3)).
• 5. Disprove any defence raised on the evidence. The onus rests on the prosecution.
• 6. Pitch the penalty one level below the completed offence. Section 321P sets the ladder.
Statutory scheme — ss 321M–321S¶
| Provision | What it does |
|---|---|
| s 321M | Creates the offence — attempting an indictable offence is itself an indictable offence. |
| s 321N(1) | The act: more than merely preparatory; immediately and not remotely connected with the commission of the offence. |
| s 321N(2) | The fault: intention to commit the principal offence, plus intent or belief as to any fact or circumstance that is an element of it. |
| s 321N(2A) | Affirmative-consent modification for sexual-offence attempts. |
| s 321N(3) | Factual impossibility is no bar. |
| s 321O | Extraterritorial reach — a person in Victoria attempting an offence in another State or Territory that would be indictable in Victoria (s 321O(1)); and a person outside Victoria attempting an indictable offence in Victoria (s 321O(2)). |
| s 321P | Penalty ladder — the maximum for an attempt is generally one level below the completed offence. |
| s 321Q | Limitations on prosecution — procedural provisions apply to the attempt as to the substantive offence (s 321Q(1)–(2)); no double conviction on the same conduct (s 321Q(3)). |
| s 321R | Applies the Division to attempt offences under other enactments, but s 321R(2) excludes an attempt (a) to be involved in the commission of an indictable offence (complicity), and (b) to commit conspiracy. |
| s 321S | Abolishes the common law offence of attempt — always plead the statutory offence. |
Attempt at a glance¶
| Issue | Rule | Key authority |
|---|---|---|
| Home | Attempting an indictable offence is itself indictable | s 321M |
| Element 1 — intention | Intend to commit the principal offence — that is, intend to perform its physical elements; where the offence requires a result, that result must be intended | Knight; McGhee |
| Attempted murder | Intent to kill only — the really-serious-injury and reckless limbs of murder are insufficient | Knight; El Nasher |
| Element 2 — the act | More than merely preparatory and immediately (not remotely) connected with the offence | s 321N(1); Abdul-Rasool |
| Impossibility | Factual impossibility is no bar; but an imagined crime is not an attempt | s 321N(3); Britten v Alpogut |
| Defences | The prosecution disproves defences raised on the evidence; provocation is abolished | Woolmington; McGhee |
| Penalty | One level below the completed offence | s 321P |
Element 1 — Intention (mens rea), s 321N(2)¶
ELEMENT 1 Did the accused intend to commit the principal offence?
→ The intention must be to commit the principal offence. The prosecution must prove beyond reasonable doubt that the accused acted with a specific intention that the completed offence be committed, and not some other offence (Knight v The Queen (1992) 175 CLR 495). That means an intention to perform the physical elements of that offence (McGhee v The Queen (1995) 183 CLR 82). → Result offences. Where the principal offence requires a result, such as the death of the victim, the prosecution must prove that the accused intended to bring about that result — even where an intention as to the result is not required to convict of the completed offence (Knight). → Recklessness and negligence are never sufficient. An intention to cause really serious injury may satisfy the mental element of completed murder where death ensues, but it is legally insufficient for attempted murder, and reckless indifference is likewise insufficient (Knight). → Circumstantial proof of intent. Where intent is to be inferred from circumstantial evidence, the inference of an intent to kill must be the only reasonable inference open on the proven facts (Knight). → Facts and circumstances (s 321N(2)(b)). The accused must also intend or believe that any fact or circumstance which is an element of the principal offence will exist at the time the offence is to take place.
Attempted murder requires an intent to KILL only
It is narrower than murder. Murder can be made out on an intent to cause really serious injury or on reckless indifference; attempted murder cannot. Do not plead or concede attempted murder off a really-serious-injury or reckless-murder theory (Knight; DPP v El Nasher).
Cases — Element 1¶
| Case & citation | Facts | Decision | Relevance |
|---|---|---|---|
| Knight v The Queen (1992) 175 CLR 495 High Court — Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ |
A struggle with the victim outside a hall, during which two shots were fired from Knight's loaded rifle. The Crown conceded the first shot was not fired with intent to kill; the second severely injured the victim. Knight said he did not point the rifle and did not know he had cocked or discharged it. Afterwards he threw the rifle into the sea, shaved his moustache and lied to police. | Appeal allowed and the attempted murder conviction quashed, a verdict of recklessly causing serious injury being substituted. Attempted murder requires proof beyond reasonable doubt of a specific intent to kill. An intention to cause grievous bodily harm, or reckless indifference, is legally insufficient. Where intent is inferred circumstantially, the inference of an intent to kill must be the only reasonable inference open. | Element 1 — the governing authority. Reach for it whenever the Crown pleads attempted murder on an inferred intent, and to resist any direction that permits conviction on a really-serious-injury or reckless theory. The circumstantial limb is the practical no-case argument. |
| McGhee v The Queen (1995) 183 CLR 82 High Court — Brennan, Deane, Dawson, Toohey and Gaudron JJ |
A recently ended de facto relationship. McGhee pointed a rifle under his own chin and pulled the trigger; it did not discharge. After a struggle his former partner fled and he shot and wounded a bystander. He was charged under the Criminal Code (Tas) with attempted murder, and sought to raise provocation to defeat the charge. | Appeal dismissed. Provocation has no application to attempted murder. Provocation does not negative an intent to kill; it operates as a historical anomaly reducing completed murder to manslaughter. The attempt provision required an intention to commit that crime. | Element 1 and defences. The authority that homicide-specific partial defences are confined to completed homicides. Any loss of self-control goes to sentence, not liability. Note the jurisdiction: this is a Tasmanian Code appeal. |
| DPP v El Nasher [2023] VSC 694 Supreme Court of Victoria — Beale J |
A shooting outside a boxing event at the Melbourne Pavilion, Kensington. One man was shot in the chest and killed; a second was injured. The accused ran a trial on lack of intent and self-defence. | The jury convicted of murder in respect of the deceased and intentionally causing serious injury in respect of the second victim, but acquitted of attempted murder. Beale J found the accused fired with an intention to cause really serious injury rather than an intention to kill. | Element 1 — the modern Victorian illustration. The cleanest demonstration that the same act can sustain murder yet fail as attempted murder, because attempted murder alone demands an intent to kill. Not in the source material — verified externally. |
Element 2 — The act of attempt (actus reus), s 321N(1)¶
ELEMENT 2 Was the conduct more than merely preparatory AND immediately and not remotely connected with the offence?
Both limbs of s 321N(1) must be satisfied. The conduct must go beyond mere preparation, and it must bear an immediate rather than a remote connection to the commission of the offence. Whether the line has been crossed turns on the facts: a would-be robber who has dressed for the job but has not yet approached the truck remains merely preparatory. → No definitive Victorian test has been endorsed. At a general level an attempt is the beginning of the commission of the crime, and the point at which conduct moves beyond preparation is indeterminate. The following are guides, not prescriptive rules. → The last-act guide. The accused has performed all the acts they needed to perform in order to complete the offence. It is a guide and is not decisive (R v De Silva [2007] QCA 301). → The unequivocal-act guide. The conduct, viewed in all the circumstances, is unequivocally referable to an intention to complete the principal offence. Again a useful guide rather than a rule (R v Nicholson (1994) 14 Tas R 351). → Proximity (Victoria). The conduct must be sufficiently proximate to the commission of the crime and not merely preparatory to it (Britten v Alpogut [1987] VR 929, Murphy J). → Voluntariness. The physical and mental components of voluntariness must be tied to a choice, consciously made, to do the physical acts in fact performed (R v Abdul-Rasool). Where reflex, spasm or a sudden struggle is raised on the evidence, insist on a direction that the jury be satisfied beyond reasonable doubt that the acts were voluntary and conscious.
Cases — Element 2¶
| Case & citation | Facts | Decision | Relevance |
|---|---|---|---|
| R v Abdul-Rasool [2008] VSCA 13 Court of Appeal — Chernov and Redlich JJA, King AJA (dissenting) |
In a dispute with a school principal, the applicant entered the principal's office carrying a container of petrol, poured petrol over her own clothing and the office floor, held up a hand-held lighter and threatened to set herself alight. She did not strike the lighter or otherwise attempt to ignite the petrol. She was charged with attempting to recklessly engage in conduct endangering life (s 22). | Appeal allowed by majority and the conviction quashed. The actus reus must be assessed strictly on the physical acts actually performed, and it is impermissible to enlarge the conduct actually engaged in by including anticipated yet hypothetical future conduct. Because the danger to life was conditional on a further, separate and voluntary act — striking the lighter — the conduct remained merely preparatory. | Element 2 — the primary Victorian authority in the source material. The no-case argument in conditional-threat and interrupted-preparation cases: the judge cannot let the jury speculate on what the accused would have done. Also the source of the voluntariness point. |
| Franze v R [2014] VSCA 352 (2014) 46 VR 856 Court of Appeal — Maxwell P, Neave and Weinberg JJA |
A joint criminal enterprise to take possession of a commercial quantity of unlawfully imported drugs. Unknown to the co-offenders, the AFP had intercepted the consignment and substituted the drugs with an inert substance before delivery. Franze performed physical acts to claim the consignment, believing it still held the drugs. | Leave refused and the conviction for attempted possession upheld. A "joint attempt" — attempting in accordance with an agreement to commit an agreed offence — is a conceptually straightforward and legally valid form of joint criminal liability. It must be distinguished from an "attempt to agree", that is an attempt to commit conspiracy, which is not an offence known to law. | Element 2 and complicity. The authority that complicity can attach to a completed attempt even though one cannot attempt to be complicit or attempt to conspire (s 321R(2)). Also the answer to a controlled-delivery impossibility argument. |
| McGhee v The Queen (1995) 183 CLR 82 High Court |
The same facts. The rifle pointed at the former partner did not discharge because of a mechanical malfunction. | The Court applied the Tasmanian formulation, under which the actus reus is an act forming part of a series of events which, if not interrupted, would constitute the actual commission of the crime (Criminal Code (Tas) s 2(1)). | Handle with care — this is not the Victorian test. See the flag below. Cite McGhee on Element 2 only to illustrate the general idea of a notional series of events, never as the governing formulation in Victoria. |
Correction — the 'series of events' test is Tasmanian, not Victorian
An earlier version of this sheet presented McGhee's series-of-events formulation as the actus reus test. The source material notes that this is the test under s 2(1) of the Criminal Code (Tas). In Victoria the actus reus is governed exclusively by s 321N(1) — more than merely preparatory, and immediately and not remotely connected — with common law tests cut off by ss 321N(1) and 321S. Expect a prosecutor to make exactly this point against a defence built on interstate common law formulations.
Crossing the Rubicon — running Element 2¶
• No case to answer, the proximity argument: dissect the transaction. Where the client was apprehended assembling tools, walking toward a venue, or making conditional threats without taking the next immediate physical step, submit there is no case under s 321N(1). On Abdul-Rasool the judge cannot permit the jury to speculate about what the accused would have done.
• Isolate the actus reus from intent: prevent the Crown from using strong evidence of intent to paper over gaps in the physical element. A fully formed and documented intent to kill or destroy property is not enough if the acts have not crossed from preparation into immediate execution.
• Voluntariness directions: where reflex, spasm or a sudden struggle is raised (cf Ryan v The Queen), insist the jury be directed that they must be satisfied beyond reasonable doubt the physical acts were voluntary and conscious, and that the judge avoid the term "intentional" when describing that physical requirement.
• Abandonment does not assist once the line is crossed: the question is whether the accused has crossed the Rubicon. See Defences below.
Impossibility and mistaken belief — s 321N(3)¶
IMPOSSIBILITY Did facts unknown to the accused make the offence impossible — or was there no real offence at all?
The Victorian position turns on the accused's intention rather than on any distinction between legal and factual impossibility: if what the accused intended to do would in law be an offence, it does not matter that completion was impossible (Britten v Alpogut [1987] VR 929). → Guilty despite impossibility (s 321N(3)). A person may be guilty even though facts of which they are unaware make commission of the offence impossible — the gun was unloaded, the pocket empty, the safe too strong, the victim too far away, the substance not in fact a drug of dependence. In Britten v Alpogut the accused was convicted of attempted importation where the substance imported turned out to be licit. → Not an attempt — the imagined crime. Where the accused erroneously believed they were committing a crime but the conduct is no offence known to law, there is no attempt. The crime attempted must be a real indictable offence, not an imagined one (Britten v Alpogut). → The statutory abrogation of the common law. At common law, Director of Public Prosecutions v Nock [1978] AC 979 held that conspiracy could not be committed where performance of the agreed crime was impossible. Modern statutory codes expressly extinguish that limitation: s 321N(3) does so for attempts and s 321(3) for conspiracy, as does s 11.5(3) of the Criminal Code (Cth) (R v LK (2010) 241 CLR 177).
Cases — impossibility¶
| Case & citation | Facts | Decision | Relevance |
|---|---|---|---|
| Britten v Alpogut [1987] VR 929 Court of Criminal Appeal — Murphy J |
The accused believed he was importing cannabis into Australia. The substance was concealed in the bottom of a suitcase he collected at the airport. It was not in fact a prohibited substance. | Conviction upheld. A criminal attempt is committed where the accused had at all material times the guilty intent to commit a recognised crime and did an act sufficiently proximate to the commission of that crime and not merely preparatory. Liability turns on the accused's intention, not on any legal or factual impossibility distinction; the accused is punishable for the evil mind accompanied by acts manifesting that intent. | The Victorian impossibility authority, and the proximity formulation. Also the source of the imagined-crime limit: the crime attempted must be one known to law. Not in the source material — verified externally. |
| Franze v R [2014] VSCA 352 (2014) 46 VR 856 Court of Appeal — Maxwell P, Neave and Weinberg JJA |
Attempted possession of a commercial quantity of unlawfully imported drugs under the Criminal Code (Cth), where the AFP had intercepted the import and substituted an inert substance before a controlled delivery. The defence argued the substitution made the completed offence factually impossible. | Leave refused. Police interception and substitution, though it rendered completed possession factually impossible, afforded the accused no immunity or defence to the charge of joint attempt; impossibility is no bar to liability. | The controlled-delivery answer. Reach for it in any "icing sugar" or benign-substance sting. It also confirms joint attempt and marks the boundary against an attempt to agree. |
| R v LK (2010) 241 CLR 177 High Court — French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ |
LK and RK were charged with conspiracy to deal with the proceeds of crime under the Criminal Code (Cth). The Crown did not prove actual knowledge or belief that the money was the proceeds of crime, running the case instead on recklessness. | Crown appeal dismissed. A conspiracy to commit an offence of recklessness requires proof that the accused intended or knew the facts making the conduct criminal. The Court discussed the common law rule in DPP v Nock and confirmed that modern statutory codes expressly abrogate it. | The impossibility genealogy. Use it to explain why s 321N(3) exists and why a Nock-style impossibility argument is bad in law. Note it is a conspiracy decision applied by analogy to attempt. |
Forensic practice — mens rea and impossibility¶
• Hold the Crown to actual intent: recklessness, and even foresight of probability, is bad in law for an attempt. It is a misdirection to allow a jury to conflate foresight of a probability with an intention to commit the completed offence.
• Exploit the circumstantial gap: where intent rests on circumstantial evidence such as tool purchases, post-offence conduct or flight, advance alternative rational hypotheses consistent with a lesser state of mind — an intention merely to frighten, to trespass, or to act recklessly. If the evidence is equally consistent with a lesser mental state, s 321N(2) is not made out.
• The golden rule on directions: "intent" connotes a subjective decision to bring about the specific result; foresight of consequences, however probable, is evidence from which intent may be inferred, not a substitute for it.
• Do not raise factual impossibility: in benign-substance stings the argument is bad in law and will be rejected under s 321N(3). Attack the mens rea instead — the Crown must prove an actual subjective belief that the substance was an illicit drug; suspicion, indifference or "having a look" is not enough.
• Impossibility jury directions: if the judge directs on s 321N(3), ask that the jury be told that factual impossibility is not a defence; that they must still be satisfied beyond reasonable doubt that the accused intended to commit the actual legally prohibited offence and not some non-criminal act; and that the subjective state of mind is assessed at the time of the conduct, so a later realisation of impossibility can neither establish nor negate intent.
Interaction with complicity and the other inchoate offences¶
• No attempt to conspire: the Division does not apply to an attempt to commit conspiracy (s 321R(2)(b)). Franze describes this as an "attempt to agree", which is not an offence known to law.
• No attempt to be complicit: the Division does not apply to an attempt to be involved in the commission of an indictable offence (s 321R(2)(a); complicity is now governed by ss 323–324C). You cannot attempt to be a secondary party.
• But complicity can attach to a completed attempt: where parties agree to a substantive crime and the principal offender's acts reach only an attempt, the secondary parties are liable for that attempt (Franze v R [2014] VSCA 352).
• The rationale: the inchoate offences are themselves offences directed at a substantive crime, whereas complicity is only a mechanism for attributing a principal's offence. Complicity therefore cannot be attempted, but it can attach to an attempt.
Defences¶
• Onus: the prosecution must disprove beyond reasonable doubt any defence properly raised on the evidence (Woolmington v DPP).
• Provocation is abolished: it is no longer a defence to attempted murder (McGhee v The Queen) or to murder. It now operates only in mitigation of sentence, or is addressed through modern self-defence, which is a complete defence yielding an acquittal rather than a downgrade.
• General defences apply: the ordinary defences to the principal offence — self-defence, duress, mental impairment, intoxication, and sudden or extraordinary emergency — apply to the attempt.
WITHDRAWAL Can the accused abandon or withdraw from an attempt?
The answer depends entirely on the stage at which the desistance occurs. → Before the threshold is crossed: if the accused abandons the plan while the conduct is still merely preparatory, the physical element of the attempt has not been satisfied and no criminal liability attaches. → After the threshold is crossed: once the conduct is more than merely preparatory and is accompanied by the requisite intent, the inchoate crime is legally complete. Voluntarily desisting from the substantive crime will not absolve the accused of liability for the attempt itself; the crime of attempt is complete when the physical act is performed with the requisite intent, even if the offender later voluntarily desists (McGhee v The Queen). Repentance goes only to mitigation of sentence. → Secondary parties are different (s 324(2)): a person is not taken to have committed an offence, including an attempted offence committed by a principal, if the person withdraws from it. Sections 324(2) and 324C(2) expressly preserve the common law of withdrawal. Once withdrawal is genuinely raised on the evidence, the prosecution bears the onus of disproving it.
Penalties — s 321P, one level down¶
The maximum penalty for an attempt is generally one level below the completed offence (s 321P). The imprisonment rungs step down as set out below. The fine scale steps down in parallel — for example a Level 2 fine of 3000 penalty units becomes a Level 3 fine of 2400 penalty units, and a Level 5 fine of 1200 penalty units becomes a Level 6 fine of 600 penalty units. At the bottom of the scale the levels converge, so a Level 11 or Level 12 fine offence attracts the same-level fine for the attempt.
| Completed offence (maximum) | Attempt (maximum) |
|---|---|
| Level 1 imprisonment (life) | Level 2 imprisonment (25 years) |
| Level 2 imprisonment (25 years) | Level 3 imprisonment (20 years) |
| Level 3 imprisonment (20 years) | Level 4 imprisonment (15 years) |
| Level 4 imprisonment (15 years) | Level 5 imprisonment (10 years) |
| Level 5 imprisonment (10 years) | Level 6 imprisonment (5 years) |
| Level 6 imprisonment (5 years) | Level 7 imprisonment (2 years) |
| Level 7 imprisonment (2 years) | Level 8 imprisonment (1 year) |
| Level 8 imprisonment (1 year) | Level 9 imprisonment (6 months) |
Jurisdiction, procedure and extraterritoriality¶
• Indictable (s 321M): an attempt to commit an indictable offence is itself an indictable offence.
• Extraterritorial (s 321O): the Division catches a person in Victoria attempting an offence interstate or in a Territory that would be indictable in Victoria (s 321O(1)), and a person outside Victoria attempting an indictable offence in Victoria (s 321O(2)).
• No double conviction (s 321Q(3)): a person cannot be convicted, on the same conduct, of both a s 321M attempt and an attempt offence under another enactment.
• Procedural read-through (s 321Q(1)–(2)): provisions on instituting proceedings, search, seizure and detention of property, corroboration, fines and forfeiture, and corporate liability apply to the attempt as they do to the completed offence.
Currency watch¶
• s 321S — the common law offence of attempt is abolished; plead the statutory offence under ss 321M–321N.
• s 321N(2A) — affirmative-consent modification for attempted rape and sexual assault (ss 38–41), substituting "did not reasonably believe B would consent" for the consent element, reflecting the 30 July 2023 consent reforms. The prosecution need not prove the accused intended or believed the complainant would not consent, only that the accused lacked a reasonable belief in consent at the time of the attempt.
• Youth Justice Act 2024 (30 September 2025) — the attempt provisions were not amended. Unlike conspiracy (s 321AA), incitement (s 321GA) and complicity (s 324AB), the attempt Division contains no child-incapacity or doli incapax provision. Note the contrast; it is an obvious short-answer target.
• s 321R(2)(a) — substituted by the 2014 complicity reforms (No 63/2014) to exclude an attempt to "be involved in the commission of an indictable offence".